Gay marriage: Pro and con

Editor's note: In the first piece below, San Diego lawyer Richard Valdez makes the case for gay marriage. In the second piece below, attorney Robert Taylor of Murrieta says voters' opinions on the issue should matter.

Valdez: Waiting to do the right thing by gay couples carries a heavy price.

The United States Supreme Court recently heard from 83-year old Edie Windsor, who lost her spouse Thea Spyer in 2009 and was promptly presented with a $363,000 estate tax bill, which she wouldn’t have had to pay had she been married to a man. The reason was the Defense of Marriage Act (DOMA). It prevents the federal government from recognizing the legal marriages of same-sex couples and treats them as single with respect to taxes, benefits and more than 1,000 other rights and obligations. The Windsor case is one of two marriage equality cases the court is currently reviewing.

In addition to the core constitutional issue of equal protection under the law presented in Windsor and Perry v. Hollingsworth (California’s Proposition 8 case), there are a number of other important legal questions facing the court. What happens when the government refuses to defend a law it has come to view as unconstitutionally discriminatory? Can the voters take away the rights of a minority group? If procreation is the purpose of marriage, should couples who cannot or do not want to have children be permitted to marry? Can the federal government override the traditional right of the states to determine who is eligible for marriage?

But perhaps the most important question before the court is whether it is too soon to decide if gay and lesbian couples are constitutionally guaranteed the freedom to marry. Opponents of marriage equality, and clearly some justices, say we should wait until we have more experience with same-sex marriage. But waiting carries with it a heavy price.

That price is paid by the 40,000 California children in families headed by same-sex couples who want, as Justice Anthony Kennedy noted, their parents to have full recognition and full status. In Massachusetts, which has had marriage equality since 2004, studies indicate that marriage has had a positive effect on children. They are happier, feel more secure and protected, and see their families as being validated by society as a result of their parents being able to marry.

The price is also paid by the thousands of couples like Edie Windsor and Thea Spyer, who had been together since the 1960s. These couples, as Justice Ruth Ginsburg stated, are relegated to a “skim milk” version of marriage – lacking in the full richness of the marriages of heterosexual couples – because they are restricted to the second class institutions of civil unions and domestic partnerships. The stigma and ostracism experienced by couples who cannot marry causes them stress and depression. And they are often poorer, due to lack of dependent health coverage, spousal survivor benefits, even the right to retain the family home after one partner dies.

When we ask whether America is ready for marriage equality, the answer is that these most directly affected Americans are more than ready. But so is the rest of America.